Court File and Parties

Court File No.: 369/17 (St. Catharines) Date: 2020-04-30 Superior Court of Justice – Family Court – Ontario

Re: ATHENA HALL, Applicant (responding party) And: Dave Thomas, Respondent (moving party)

Before: The Honourable Mr. Justice R. A. Lococo

Counsel: Carly White, for the Applicant Nathalie G. Fortier, for the Respondent

Heard: By written submissions dated April 14-20, 2020

Endorsement – Costs

[1] The Applicant Athena Hall and the Respondent Dave Thomas are parties to the Applicant’s December 2019 application seeking leave to move with their two children (aged six and five) from St. Catharines to Watertown, New York, where the Applicant’s husband resides. After commencing her application, the Applicant mother advised of her intention to move with the children to Kingston, Ontario on an interim basis and refused the Respondent father’s request to defer the interim move. The Respondent father brought a motion for a temporary order to prevent the Applicant mother from moving the children outside of St. Catharines without the consent of the Respondent father or further court order.

[2] By endorsement dated March 27, 2020, MacPherson J. (acting as triage judge during the suspension of regular court operations as a result of the COVID-19 health emergency) permitted the Respondent father’s motion to proceed on an emergency basis. The triage endorsement left it to the hearing judge to determine whether written materials would suffice or whether a teleconference hearing would be necessary.

[3] I considered the Respondent father’s emergency motion based on the parties’ written materials, including responding material (dated April 1, 2020) submitted through counsel the Applicant mother retained for that purpose. As set out in my endorsement dated April 3, 2020 (reported at 2020 ONSC 2088), I made a temporary order granting the Respondent father’s motion on the terms requested. Costs were left to be determined based on written submissions.

[4] The determination of costs is in the court’s discretion: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131. For family law proceedings, there is a presumption that a successful party is entitled to costs: Family Law Rules, O. Reg. 114/99, r. 24(1). However, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs: rr. 24(4) and (5). If success is divided, the court may apportion costs as appropriate: r. 24(6).

[5] Based on their written costs submissions, it is common ground that there should be a costs award in favour of the Respondent father as the successful party on the motion. The parties disagree, however, on the appropriate scale and quantum of costs.

[6] The Respondent father seeks costs on a substantial indemnity basis in the amount of $3,223.78, including disbursements and tax. In the alternative, his costs outline indicates partial indemnity costs totalling $1,817.95. To support his request for substantial indemnity costs, he relies on attempts through his counsel (prior to bringing the motion) to obtain the Applicant mother’s consent that neither party move the children from St. Catharines or travel with the children outside Canada without the other’s consent. As well, on April 2, 2020, he made an offer to settle the motion on terms equivalent to those in the interim order granted the following day.

[7] The Applicant mother disputes that a substantial indemnity costs award is appropriate in this case. She argues in favour of a partial indemnity cost award based on 50 per cent of the partial indemnity amount set out in the Respondent father’s costs outline. She submits that the costs award should be $775.45. By my calculation, using the basis of calculation she proposes, the total amount (including disbursements and tax) would be $941.69.

[8] As indicated by the Ontario Court of Appeal in previous decisions, costs are normally awarded on a partial indemnity basis except in a “rare and exceptional case”, based on “egregious or reprehensible conduct that warrants sanction”: see McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 59 O.R. (3d) 97 (C.A.), at paras. 37-38.

[9] Rule 18(4) of the Family Law Rules provides an exception to that general rule where a party who makes an offer to settle obtains an order that meets certain specified requirements. If the requirements in r. 18(4) are met, the qualifying party is “entitled to costs to the date of the offer and full recovery costs from that date.”

[10] In this case, the Respondent father received an order that is as favourable as his offer, meeting one of the requirements of r. 18(14). Nevertheless, the Respondent father does not have the benefit of that rule in the circumstances of this case.

[11] For r. 18(14) to apply on a motion, the offer must also meet additional conditions: (i) it is “made at least one day before the motion date”; (ii) it “does not expire and is not withdrawn before the hearing starts”; and (iii) it “is not accepted.”

[12] By its terms, the Respondent father’s offer to settle was open until two minutes after the commencement of the motion hearing. As previously noted, there was no oral hearing of the motion. The last of the material filed on the motion was received April 1, 2020. The offer was not made until the following day. The Applicant mother had no real opportunity to accept the offer in accordance with its terms before its “expiry”. In these circumstances, r. 18(14) does not apply. In any case, the only costs incurred after the date of the offer that would be charged on a full indemnity basis would be those relating to the costs submission. Any charges relating to the motion itself had already been incurred.

[13] Even though the Respondent father does not have the benefit of r. 18(14) in this case, when exercising its discretion over costs, the court is nonetheless permitted under r. 18(16) to take into account any written offer to settle even if r. 18(14) does not apply. The Respondent father argues that in determining both the scale and quantum of costs awarded, I should take into account his April 2 offer to settle, as well as his previous unsuccessful attempts to obtain the Applicant mother’s consent to deferral of the interim move.

[14] I agree that these considerations may be relevant in determining quantum, but I do not consider a substantial indemnity costs award to be justified in this case. While I consider her resistance to deferring an interim move to be ill advised, the consent that the Applicant mother (who was then unrepresented) was requested to sign would have further restricted her mobility by requiring the Respondent father’s consent (not to be unreasonably withheld) before she could cross into the United States, where her husband lives. Such a restriction was therefore outside the scope of the temporary order that the Respondent father requested (and received) in his emergency motion. In any case, in all the circumstances, I do not consider this case to be a “rare and exceptional” one where the Applicant mother’s conduct rises to the level of being “egregious or reprehensible conduct that warrants sanction”: see McBride, at paras. 37-38.

[15] In Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, the Court of Appeal indicates that as a general rule in family law proceedings, “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”. That principle is reflected in r. 24(12)(a), which directs the court when fixing costs to consider the “reasonableness and proportionality” of a number of listed factors as they relate to “the importance and complexity of the issues”. Those factors include (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle (including offers that do not meet the requirements of r. 18), (iv) legal fees, including the number of lawyers and their rates, and (v) any proper expenses.

[16] Applying those considerations, the Applicant mother argues that the amount claimed for costs is excessive, taking into account the hours spent and the hourly rate charged by Respondent’s counsel, who is in her second year of practice. The Applicant mother also asks me to take into account the Respondent father’s previous conduct, including his failure to pay any child support since their separation in 2017. As well, she says I should consider her unsuccessful attempts to settle the costs issue subsequent to my April 3 temporary order, providing certain particulars of those discussions.

[17] Addressing the last point first, when making costs submissions, I do not consider it appropriate for the parties to disclose the particulars of any discussions they may have had about settling the issues of costs between them. In my view, doing so is not consistent with either the spirit or the letter of r. 18, including r. 18(8). When determining costs in family proceedings, r. 18 permits the court to consider any offers to settle the matters in issue, but only once the court has rendered a decision on those matters: see Witt v. Witt, 2019 ONSC 3732, at paras. 13-14. In my April 3 endorsement, I did not decide the costs issue, requiring written costs submissions if the parties were unable to settle costs between them. I consider it counterproductive if the parties can expect that “without prejudice” discussions to settle costs can be used against them if they are unable come to an agreement on that issue.

[18] With respect to the Respondent father’s previous conduct, while I agree that it may be appropriate to take into account the conduct of both parties, the record before me does not provide much assistance in determining the extent to which such matters should be a factor in determining costs for this motion.

[19] In reviewing the Respondent father’s costs outline, I did not find the hours charged or proposed partial indemnity rate to be excessive in the circumstances. That being said, as noted by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” As well, as indicated in Beaver, at para. 12, I am guided by the “touchstone considerations” of reasonableness and proportionality when fixing the amount of costs.

[20] In all the circumstances, I fix the Respondent father’s costs at $1,500, including disbursements and tax, payable by the Applicant mother within 90 days.

The Honourable Mr. Justice R.A. Lococo Date: April 30, 2020